• Partition

I have a gifted property.
Now after 13 years the donor has filed a partition suit
In the gift deed text says 50% share as gifted. However as per the schedule and as per affidavit total property has been gifted and form no 15 the description contains as the whole property gifted. Now accordingly khatha is for the whole property. Possession is also with a us
Is the partition suit maintainable
Asked 4 years ago in Property Law
Religion: Hindu

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10 Answers

If he has gifted, he has no interests in the property.

Jaswant Singh
Advocate, Gurugram
926 Answers
2 Consultations

4.8 on 5.0

if the gift deed text state only 50 percent of property is gifted then it can be a point of litigation to considered as the gift deed is registered document for gift of property, further the schedule only mention the property details.

But since the affidavit and form 15 mention that the donor has gifted complete property it can be issue of litigation. You can contest same that since donor has gifted the complete property and in deed it was just an typographical error the donor has no interest in property can pray before court to reject the suit.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

You only have 50 per cent share in gifted property

2) if there is mistake deed of rectification ought to have been executed

3) since no deed of rectification is executed partition suit is maintainable

Ajay Sethi
Advocate, Mumbai
87938 Answers
6207 Consultations

5.0 on 5.0

Hello,

The partition suit is not maintainable in the instant case.

Hope this helps.

Regards.

Swarupananda Neogi
Advocate, Kolkata
2941 Answers
6 Consultations

4.7 on 5.0

As per the gift deed, you'll only have 50% rights in the said property.

Suit of partition is maintainable to the grounds that only half of the property was gifted to you, but was wrongly registered as full due to some mistake or typographical error.

Regards.

Siddharth Jain
Advocate, New Delhi
5930 Answers
101 Consultations

5.0 on 5.0

1. Check the amount of stamp duty paid on the gift deed

2. Whether stamp duty is paid for half share or full property?

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

Dear Sir,

Gift Deed cannot be cancelled without the consent of the other party. The law is as follows:

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Gift Deed – once registred no cancellation

A gift is a money or house, shares, jewellery, etc. that is received without thought, or merely an asset acquired without making a payment against it and is a capital asset for the ‘Recipient.’ It can be as cash or movable property or immovable property.

If you might want to gift the property to any of your blood relatives, Gift deed can be used. In the case of immovable property, it is required to register the Gift Deed as per Section 17 of the Registration Act, 1908.

This kind of transfer is unavoidable. When you gift the assets like land, it belongs to the beneficiary or receiver of the gift and you cannot switch the transfer or even ask money related compensation.

It can be a cost effective method of transferring the ownership.

3. Relinquishment Deed or Release Deed

If there are multiple owners of assets, and if one of the co-owner needs to transfer his/her rights in the property to another co-owner then this can be possibly done through the execution of RELINQUISHMENT DEED.

The property transfer through Relinquishment deed can be for consideration or without consideration i.e. without any exchange of money. Like gift deed, this transfer is also unavoidable.

4. Partition Deed or Settlement Deed

Partition Deed is executed by the co-owners of the land when a court order or order of a local revenue authority has to be implemented.

In the case of Settlement Deed, however, the property is owned by a third person and is settled for individuals who do not have any past interest in the said property and the share of the heir is as per the desires of the settler.

Unlike WILL, Settlement is a non-testamentary report which becomes operative immediately. Will is a testamentary file, which becomes operative after the expiration of its owner. Also, WILL is revocable and can be modified by the testator, whereas Settlement deed is unalterable.

========================================== Section 17 in The Registration Act, 1908

17. Documents of which registration is compulsory.—(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:—

(a) instruments of gift of immovable property;

Section 126 in The Transfer of Property Act, 1882

126. When gift may be suspended or revoked.—The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be. A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. Save as aforesaid, a gift cannot be revoked. Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice. Illustrations

(a) A gives a field to B, reserving to himself, with B’s assent, the right to take back the field in case B and his descendants die before A. B dies without descendants in A’s lifetime. A may take back the field.

(b) A gives a lakh of rupees to B, reserving to himself, with B’s assent, the right to take back at pleasure Rs. 10,000 out of the lakh. The gift holds goods as to Rs. 90,000, but is void as to Rs. 10,000, which continue to belong to A.

No Authority Can Cancel Registered Documents: SC [Read Judgment]

The Supreme Court in Satya Pal Anand vs. State of M.P, has held that once the document is registered, it is not open to any authority, under the Registration Act, 1908, to cancel the registration. In the instant case, an application was moved by a person before the Sub-Registrar (Registration) calling upon him to cancel the registration of extinguishment deed executed by the Society cancelling an allotment of plot. Aggrieved by rejection of his application, on the ground that Sub Registrar has no jurisdiction to cancel the registration of a registered document in question, he approached Inspector General (Registration), but in vain....

===========================================

Essential Elements Of Gift

The term gift denotes a voluntary transfer of real or personal property to another made without any particular cause and without consideration. The person who gives the gift is called donor and the one who receives the gift is called donee. A gift is generally made out of affection, respect, charity, or like impulses, and not from any moral or legal duty. Gifts enjoy tax exemption and a payment made without conditions and out of respect or charity or in anticipation of economic benefits is generally characterized as gift under tax law. A charity will normally issue a tax receipt for the gift amount and it can provide a tax receipt for gift- in -kind also.

A gift can be made during the donor’s lifetime (inter-vivos) or by will (testamentary). The two principal categories of gifts are inter vivos gifts and causa mortis gifts. An inter vivos gift is perfected and takes effect during the lifetime of the donor and donee and is irrevocable in nature. A gift causa mortis is one that is made in anticipation of imminent death. This type of gift takes effect upon the death of the donor from the expected disease or illness and may be revoked until the donor’s death. There is a third category called testamentary gift made by will. It operates to transfer ownership only subsequent to the death of the donor.

Essential elements of a gift include: capacity of the donor; intention of the donor to make the gift; completed delivery to or for the benefit of the donee; and acceptance of the gift by the donee. A gift can be made either in the form of cash or a gift-in-kind. A gift-in-kind means a gift of property other than cash and includes inventory, capital property, donations of real estate, stocks and bonds, and personal items. A donor can make a gift to a registered charity or other qualified donee. Services are not property and hence will not constitute the subject matter of gifts. Gift should be given voluntarily, of one’s free will and the donor who makes the gift should transfer the full ownership and possession to the donee. Generally a donor transfers property as a gift without expecting anything in return and donor cannot part with the gifted property in the name of a contract or court order.

The three elements which are essential to the making of a valid gift are delivery, donative intent, and acceptance by the donee. The delivery of a gift is complete when it is made directly to the donee. Delivery can also be made to a third party on behalf of the donee. The third person can be the donor’s agent, bailee, or trustee. In the case of delivery to a third party, delivery is deemed to be complete only when such person actually hands over the property to the donee.

A delivery may be actual, implied, or symbolic, and requires some affirmative act to take place. For instance, A wishes to gift a cow to his daughter B. The actual delivery takes place when A hires a person to bring the cow to B’s farm. A symbolic delivery of a car, for instance can occur when the donor hands over the key of the car to the donee. Delivery is complete only when the donor surrenders control of the property. For example, an individual who expresses the desire to make a gift of a car to another but continues to drive the car whenever he or she wishes has not surrendered control of the car.

If the donor and donee reside in the same house, the gift need not be removed from the house and can be kept in the same house. States do not require too many formalities to establish delivery and if it is proved that the donor relinquished all claim to the gift and recognized the donee’s right to exercise control over it, courts consider it as an adequate indication of a transfer by gift. In the case of a gift to an infant or an insane person who does not have legal capacity to accept delivery, such delivery can be made to an individual who will hold it for such infant or insane person.

If the donee is out of the country at the time of making the gift, delivery can be made to someone else who agrees to accept the property for the donee. However, if the individual accepting delivery is employed by the donor, it is presumed that the donor has not rendered control of the property and that delivery has not actually been made. “The individual accepting delivery must be holding the property for the donee and not for the donor.”

The second ingredient of a valid gift is donative intent, which is inferred from the “donor’s words, the surrounding circumstances, the relationship of the parties, the size of the gift in relation to the amount of the donor’s property as a whole, and the behavior of the donor towards the property subsequent to the purported gift.”

The intent must be present at the time the gift is made and is different from a mere expectation. For example, if one person promises to give a house to an artist “someday,” the promise is unenforceable because there is no intent to make an effective gift at the time of the promise.

The third element for a valid gift is acceptance. Acceptance means that the donee unconditionally agrees to take the gift. It is necessary for the donee to agree at the same time the delivery is made. The gift can, however, be revoked at any time prior to acceptance.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

Dear Client,

Intention of donor and language of GIFT Deed matters. Gifted portion is varied in text, schedule.... and

affidavit ?

Stamp duty is payable on GIFT Deed, if duty is paid for 50% than gifted portion is 50% ... and so on

Hope u understood.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

If the entire property has been transferred by this registered gift deed then the suit for partition is not maintainable.

You must see that if there was any mention about the proeprty now being sought in partition suit in the original gift deed.

You may discuss with your advocate ion all such further issues because without seeing the document no concrete opinion can be rendered.

T Kalaiselvan
Advocate, Vellore
78095 Answers
1543 Consultations

5.0 on 5.0

Please see the schedule 1 of the Court Fees Act 1870 .

Regards.

Swarupananda Neogi
Advocate, Kolkata
2941 Answers
6 Consultations

4.7 on 5.0

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